Execution Copy
PRUDENTIAL SECURITIES SECURED FINANCING CORPORATION TRUST
HOME EQUITY LOAN PASS-THROUGH CERTIFICATES
SERIES 1997-1
UNDERWRITING AGREEMENT
March 21, 1997
UNDERWRITING AGREEMENT
PRUDENTIAL SECURITIES INCORPORATED
One New York Plaza, 17th Floor
New York, New York 10292
March 21, 1997
Dear Sirs:
Prudential Securities Secured Financing Corporation (the "Depositor")
proposes, subject to the terms and conditions stated herein and in the attached
Underwriting Agreement Standard Provisions, dated March 21, 1997 (the "Standard
Provisions"), between the Depositor and Prudential Securities Incorporated, to
issue and sell to you (the "Underwriter") the Securities specified in Schedule I
hereto (the "Offered Securities"). The Depositor agrees that each of the
provisions of the Standard Provisions is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Underwriting Agreement. Each reference to the
Representative herein and in the provisions of the Standard Provisions so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Standard Provisions are used herein as
therein defined. The Prospectus Supplement and the accompanying Prospectus
relating to the Offered Securities (together, the "Prospectus") are incorporated
by reference herein.
Subject to the terms and conditions set forth herein and in the Standard
Provisions incorporated herein by reference, the Depositor agrees to issue and
sell to the Underwriter, and the Underwriter agrees to purchase from the
Depositor, at the time and place and at the purchase price to the Underwriter
and in the manner set forth in Schedule I hereto, the entire original principal
balance of the Offered Securities.
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If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the Standard
Provisions incorporated herein by reference, shall constitute a binding
agreement between the Underwriter and the Depositor.
Very truly yours,
PRUDENTIAL SECURITIES SECURED
FINANCING CORPORATION
By:/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Accepted as of the date hereof:
PRUDENTIAL SECURITIES INCORPORATED
By:/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
Name:
Title:
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SCHEDULE I
Title of Offered
Securities: Emergent Home Equity Loan Pass- Through Certificates,
Series 1997-1, Class A-1, Class A-2 and Class A-3
(together, the "Class A Certificates.")
Terms of Offered
Securities: The Offered Securities shall have the terms set forth
in the Prospectus and shall conform in all material
respects to the descrip- tions thereof contained
therein, and shall be issued pursuant to a Pooling
and Servicing Agreement to be dated as of the Closing
Date among the Depositor, Emergent Mortgage Corp., as
servicer, and First Union National Bank of North
Carolina, as trustee.
Purchase Price: The purchase price for the Class A-1 Certificates
shall be $44,496,979 plus accrued interest at the
rate of 6.91% per annum from March 1, 1997 to the
date of payment thereof. The purchase price for the
Class A-2 Certificates shall be $11,258,773.50 plus
accrued interest at the rate of 7.30% per annum from
March 1, 1997 to the date of payment thereof. The
purchase price for the Class A-3 Certificates shall
be $18,750,356.63 plus accrued interest at the rate
of 7.725% per annum from March 1, 1997 to the date of
payment thereof. Total accrued interest on the Class
A-1, Class A-2 and Class A-3 Certificates is
$373,649.29.
Specified funds for
payment of
Purchase Price: Federal Funds (immediately available funds).
Required Rating: Aaa by ▇▇▇▇▇'▇ Investors Service, Inc.
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AAA by Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
Closing Date: On or about March 26, 1997 at 12:00 noon eastern
standard time or at such other time as the Depositor
and the Underwriter shall agree.
Closing Location: Offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
Name and address of
Representative: Designated Representative: Prudential Securities
Incorporated.
Address for Notices,
etc.: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇.
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STANDARD PROVISIONS TO UNDERWRITING AGREEMENT
March 21, 1997
From time to time, Prudential Securities Secured Financing Corporation, a
Delaware corporation (the "Depositor") may enter into one or more underwriting
agreements (each, an "Underwriting Agreement") that provide for the sale of
designated securities to the several underwriters named therein (such
underwriters constituting the "Underwriters" with respect to such Underwriting
Agreement and the securities specified therein). The several underwriters named
in an Underwriting Agreement will be represented by one or more representatives
as named in such Underwriting Agreement (collectively, the "Representative").
The term "Representative" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. The standard provisions set forth
herein (the "Standard Provisions") may be incorporated by reference in any
Underwriting Agreement. This Agreement shall not be construed as an obligation
of the Depositor to sell any securities or as an obligation of any of the
Underwriters to purchase such securities. The obligation of the Depositor to
sell any securities and the obligation of any of the Underwriters to purchase
any of the securities shall be evidenced by the Underwriting Agreement with
respect to the securities specified therein. An Underwriting Agreement shall be
in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of the communications
transmitted. The obligations of the underwriters under this Agreement and each
Underwriting Agreement shall be several and not joint. Unless otherwise defined
herein, the terms defined in the Underwriting Agreement are used herein as
defined in the Prospectus referred to below.
1. The Offered Securities. The Depositor proposes to sell pursuant to the
applicable Underwriting Agreement to the several Underwriters named therein home
equity loan pass-through certificates (the "Securities") representing beneficial
ownership interests in a trust, the trust property of which consists of a pool
of Mortgage Loans and certain related property. The Securities will be issued
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement") by and among the Depositor, Emergent Mortgage Corp. (the "Servicer")
and First Union National Bank of North Carolina, as trustee (the "Trustee").
The terms and rights of any particular issuance of Securities shall be as
specified in the Underwriting Agreement relating thereto and in or pursuant to
the Pooling and
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Servicing Agreement identified in such Underwriting Agreement. The Securities
which are the subject of any particular Underwriting Agreement into which this
Agreement is incorporated are herein referred to as the "Offered Securities."
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-16511),
including a prospectus relating to the Securities under the Securities Act of
1933, as amended (the "1933 Act"). The term "Registration Statement" means such
registration statement as amended to the date of the Underwriting Agreement. The
term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Offered Securities, as first
filed with the Commission pursuant to Rule 424. The term "Preliminary
Prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities together with the Basic Prospectus.
2. Offering by the Underwriters. Upon the execution of the Underwriting
Agreement applicable to any Offered Securities and the authorization by the
Representative of the release of such Offered Securities, the several
Underwriters propose to offer for sale to the public the Offered Securities at
the prices and upon the terms set forth in the Prospectus.
3. Purchase, Sale and Delivery of the Offered Securities. Unless otherwise
specified in the Underwriting Agreement, payment for the Offered Securities
shall be made by certified or official bank check or checks payable to the order
of the Depositor in immediately available or next day funds, at the time and
place set forth in the Underwriting Agreement, upon delivery to the
Representative for the respective accounts of the several Underwriters of the
Offered Securities registered in definitive form and in such names and in such
denominations as the Representative shall request in writing not less than five
full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Offered Securities are herein referred
to as the "Closing Date".
4. Conditions of the Underwriters' Obligations. The respective obligations
of the several Underwriters pursuant to the Underwriting Agreement shall be
subject, in the discretion of the Representative, to the accuracy in all
material respects of the representations and warranties of the Depositor
contained herein as of the date of the Underwriting Agreement and as of the
Closing Date as if made on and as of the Closing Date, to the accuracy in all
material respects of the statements of the officers of the Depositor and the
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Servicer made in any certificates pursuant to the provisions hereof and of the
Underwriting Agreement, to the performance by the Depositor of its covenants and
agreements contained herein and to the following additional conditions
precedent:
(a) All actions required to be taken and all filings required to be made by
or on behalf of the Depositor under the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act") prior to the sale of the
Offered Securities shall have been duly taken or made.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect; (ii) no proceedings for such purpose shall be
pending before or threatened by the Commission, or by any authority
administering any state securities or "Blue Sky" laws; (iii) any requests
for additional information on the part of the Commission shall have been
complied with to the Representative's reasonable satisfaction, (iv) since
the respective dates as of which information is given in the Registration
Statement and the Prospectus except as otherwise stated therein, there
shall have been no material adverse change in the condition, financial or
otherwise, earnings, affairs, regulatory situation or business prospects of
the Depositor; (v) there are no material actions, suits or proceedings
pending before any court or governmental agency, authority or body or
threatened, affecting the Depositor or the transactions contemplated by the
Underwriting Agreement; (vi) the Depositor is not in violation of its
charter or its by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be bound, which
violations or defaults separately or in the aggregate would have a material
adverse effect on the Depositor; and (vii) the Representative shall have
received, on the Closing Date a certificate, dated the Closing Date and
signed by an executive officer of the Depositor, to the foregoing effect.
(c) Subsequent to the execution of the Underwriting Agreement, there shall
not have occurred any of the following: (i) if at or prior to the Closing
Date, trading in securities on the New York Stock Exchange shall have been
suspended or any material limitation in trading in securities
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generally shall have been established on such exchange, or a banking
moratorium shall have been declared by New York or United States
authorities; (ii) if at or prior to the Closing Date, there shall have been
an outbreak or escalation of hostilities between the United States and any
foreign power, or of any other insurrection or armed conflict involving the
United States which results in the declaration of a national emergency or
war, and, in the reasonable opinion of the Representative, makes it
impracticable or inadvisable to offer or sell the Offered Securities or
(iii) if at or prior to the Closing Date, a general moratorium on
commercial banking activities in New York shall have been declared by
either Federal or New York State authorities.
(d) The Representative shall have received, on the Closing Date, a
certificate dated the Closing Date and signed by an executive officer of
the Depositor to the effect that attached thereto is a true and correct
copy of the letter from each nationally recognized statistical rating
organization (as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act) that rated the Offered Securities and
confirming that, unless otherwise specified in the Underwriting Agreement,
the Offered Securities have been rated in the highest rating categories by
each such organization and that each such rating has not been rescinded
since the date of the applicable letter.
(e) The Representative shall have received, on the Closing Date, an opinion
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, special counsel for the Depositor, dated the Closing
Date, in form and substance satisfactory to the Representative and
containing opinions substantially to the effect set forth in Exhibit A
hereto.
(f) The Representative shall have received, on the Closing Date, an opinion
of counsel for the Servicer, dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters and
containing opinions substantially to the effect set forth in Exhibit B
hereto.
(g) The Representative shall have received, on the Closing Date, an opinion
of counsel for the Trustee, dated the Closing Date, in form and substance
satisfactory to the Representative and counsel for the Underwriters and
containing
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opinions substantially to the effect set forth in Exhibit C hereto.
(h) The Representative shall have received, on the Closing Date, an opinion
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date,
with respect to the incorporation of the Depositor, the validity of the
Offered Securities, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably require, and the
Depositor shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(i) The Representative shall have received, on or prior to the date of
first use of the prospectus supplement relating to the Offered Securities,
and on the Closing Date if requested by the Representative, letters of
independent accountants of the Depositor in the form and reflecting the
performance of the procedures previously requested by the Representative.
(j) The Depositor shall have furnished or caused to be furnished to the
Representative on the Closing Date a certificate of an executive officer of
the Depositor satisfactory to the Representative as to the accuracy of the
representations and warranties of the Depositor herein at and as of such
Closing Date as if made as of such date, as to the performance by the
Depositor of all of its obligations hereunder to be performed at or prior
to such Closing Date, and as to such other matters as the Representative
may reasonably request;
(k) The Servicer shall have furnished or caused to be furnished to the
Representative on the Closing Date a certificate of officers of such
Servicer in form and substance reasonably satisfactory to the
Representative;
(l) The Policy shall have been duly executed and issued at or prior to the
Closing Date and shall conform in all material respects to the description
thereof in the Prospectus Supplement.
(m) The Representative shall have received, on the Closing Date, an opinion
of counsel to Financial Security Assurance Inc. ("the Certificate
Insurer"), dated the Closing Date, in form and substance satisfactory to
the Representative and counsel for the Underwriters and containing
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opinions substantially to the effect set forth in Exhibit D hereto.
(n) On or prior to the Closing Date there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change in rating the
direction of which has not been indicated, in the rating accorded the
Certificate Insurer's claims paying ability by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
the 1933 Act.
(o) There shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations, since December 31, 1994, of the
Certificate Insurer, that is in the Representative's judgment material and
adverse and that makes it in the Representative's judgment impracticable to
market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
(p) The Representative shall have been furnished such further information,
certificates, documents and opinions as the Representative may reasonably
request.
5. Covenants of the Depositor. In further consideration of the agreements
of the Underwriters contained in the Underwriting Agreement, the Depositor
covenants as follows:
(a) To furnish the Representative, without charge, copies of the
Registration Statement and any amendments thereto including exhibits and as
many copies of the Prospectus and any supplements and amendments thereto as
the Representative may from time to time reasonably request.
(b) Immediately following the execution of the Underwriting Agreement, the
Depositor will prepare a prospectus supplement setting forth the principal
amount, notional amount or stated amount, as applicable, of Offered
Securities covered thereby, the price at which the Offered Securities are
to be purchased by the Underwriters from the Depositor, either the initial
public offering price or prices or the method by which the price or prices
at which the Offered Securities are to be sold will be determined, the
selling concessions and
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reallowances, if any, any delayed delivery arrangements, and such other
information as the Representative and the Depositor deem appropriate in
connection with the offering of the Offered Securities, but the Depositor
will not file any amendment to the Registration Statement or any supplement
to the Prospectus of which the Representative shall not previously have
been advised and furnished with a copy a reasonable time prior to the
proposed filing or to which the Representative shall have reasonably
objected. The Depositor will use its best efforts to cause any amendment to
the Registration Statement to become effective as promptly as possible.
During the time when a Prospectus is required to be delivered under the
1933 Act, the Depositor will comply so far as it is able with all
requirements imposed upon it by the 1933 Act and the rules and regulations
thereunder to the extent necessary to permit the continuance of sales or of
dealings in the Offered Securities in accordance with the provisions hereof
and of the Prospectus, and the Depositor will prepare and file with the
Commission, promptly upon request by the Representative, any amendments to
the Registration Statement or supplements to the Prospectus which may be
necessary or advisable in connection with the distribution of the Offered
Securities by the Underwriters, and will use its best efforts to cause the
same to become effective as promptly as possible. The Depositor will advise
the Representative, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement or any amended
Registration Statement has become effective or any supplement to the
Prospectus or any amended Prospectus has been filed. The Depositor will
advise the Representative, promptly after it receives notice or obtains
knowledge thereof, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, or the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose, or of any request
made by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information, and
the Depositor will use its best efforts to prevent the issuance of any such
stop order or any order suspending any such
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qualification, and if any such order is issued, to obtain the lifting
thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the Offered Securities is
required to be delivered under the 1933 Act, any event occurs as a result
of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact, or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary for any other reason to amend or
supplement the Prospectus to comply with the 1933 Act, to promptly notify
the Representative thereof and upon their request to prepare and file with
the Commission, at the Depositor's own expense, an amendment or supplement
which will correct such statement or omission or any amendment which will
effect such compliance.
(d) During the period when a prospectus is required by law to be delivered
in connection with the sale of the Offered Securities pursuant to the
Underwriting Agreement, the Depositor will file, on a timely and complete
basis, all documents that are required to be filed by the Depositor with
the Commission pursuant to Sections 13, 14, or 15(d) of the 1934 Act.
(e) To qualify the Offered Securities for offer and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Representative
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification of the
eligibility of the Offered Securities for investment under the laws of such
jurisdictions as the Representative may designate provided that in
connection therewith the Depositor shall not be required to qualify to do
business or to file a general consent to service of process in any
jurisdiction.
(f) To make generally available to the Depositor's security holders, as
soon as practicable, but in any event not later than eighteen months after
the date on which the filing of the Prospectus, as amended or supplemented,
pursuant to Rule 424 under the 1933 Act first occurs, an earnings statement
of the Depositor covering a twelve-month period beginning after the date of
the Underwriting Agreement, which shall satisfy the provisions of
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Section 11(a) of the 1933 Act and the applicable rules and regulations of
the Commission thereunder (including at the option of the Depositor Rule
158).
(g) For so long as any of the Offered Securities remain outstanding, to
furnish to the Representative upon request in writing copies of such
financial statements and other periodic and special reports as the
Depositor may from time to time distribute generally to its creditors or
the holders of the Offered Securities and to furnish to the Representative
copies of each annual or other report the Depositor shall be required to
file with the Commission.
(h) For so long as any of the Offered Securities remain outstanding, the
Depositor will, or will cause the Servicer to, furnish to the
Representative, as soon as available, a copy of (i) the annual statement of
compliance delivered by the Servicer to the Trustee under the applicable
Pooling and Servicing Agreement, (ii) the annual independent public
accountants' servicing report furnished to the Trustee pursuant to the
applicable Pooling and Servicing Agreement, (iii) each report regarding the
Offered Securities mailed to the holders of such Securities, and (iv) from
time to time, such other information concerning such Securities as the
Representative may reasonably request.
6. Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with, each Underwriter, as of the date of
the Underwriting Agreement, as follows:
(a) The Registration Statement including a prospectus relating to the
Securities and the offering thereof from time to time in accordance with
Rule 415 under the 1933 Act has been filed with the Commission and such
Registration Statement, as amended to the date of the Underwriting
Agreement, has become effective. No stop order suspending the effectiveness
of such Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission. A prospectus
supplement specifically relating to the Offered Securities will be filed
with the Commission pursuant to Rule 424 under the 1933 Act; provided,
however, that a supplement to the Prospectus prepared pursuant to Section
5(b) hereof shall be
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deemed to have supplemented the Basic Prospectus only with respect to the
Offered Securities to which it relates. The conditions to the use of a
registration statement on Form S-3 under the 1933 Act, as set forth in the
General Instructions on Form S-3, and the conditions of Rule 415 under the
1933 Act, have been satisfied with respect to the Depositor and the
Registration Statement. There are no contracts or documents of the
Depositor that are required to be filed as exhibits to the Registration
Statement pursuant to the 1933 Act or the rules and regulations thereunder
that have not been so filed.
(b) On the effective date of the Registration Statement, the Registration
Statement and the Basic Prospectus conformed in all material respects to
the requirements of the 1933 Act and the rules and regulations thereunder,
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; on the date of the Underwriting
Agreement and as of the Closing Date, the Registration Statement and the
Prospectus conform, and as amended or supplemented, if applicable, will
conform in all material respects to the requirements of the 1933 Act and
the rules and regulations thereunder, and on the date of the Underwriting
Agreement and as of the Closing Date, neither of such documents includes
any untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and neither of such documents as amended or supplemented,
if applicable, will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the
foregoing does not apply to statements or omissions in any of such
documents based upon written information furnished to the Depositor by any
Underwriter specifically for use therein.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, there has been no material adverse change in the condition,
financial or otherwise, earnings, affairs, regulatory situation or business
prospects of the Depositor, whether or not arising in the ordinary course
of the business of the Depositor.
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(d) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(e) The Depositor has all requisite power and authority (corporate and
other) and all requisite authorizations, approvals, order, licenses,
certificates and permits of and from all government or regulatory officials
and bodies to own its properties, to conduct its business as described in
the Registration Statement and the Prospectus and to execute, deliver and
perform this Agreement, the Underwriting Agreement, the Pooling and
Servicing Agreement and, if applicable, the Custodial Agreement, except
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution by the Underwriter of the
Offered Securities; all such authorizations, approvals, orders, licenses,
certificates are in full force and effect and contain no unduly burdensome
provisions; and, except as set forth or contemplated in the Registration
Statement or the Prospectus, there are no legal or governmental proceedings
pending or, to the best knowledge of the Depositor, threatened that would
result in a material modification, suspension or revocation thereof.
(f) The Offered Securities have been duly authorized, and when the Offered
Securities are issued and delivered pursuant to the Underwriting Agreement,
the Offered Securities will have been duly executed, issued and delivered
and will be entitled to the benefits provided by the applicable Pooling and
Servicing Agreement, subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other
laws affecting the rights of creditors generally, and to general principles
of equity (regardless of whether the entitlement to such benefits is
considered in a proceeding in equity or at law), and will conform in
substance to the description thereof contained in the Registration
Statement and the Prospectus, and will in all material respects be in the
form contemplated by the Pooling and Servicing Agreement.
(g) The execution and delivery by the Depositor of this Agreement, the
Underwriting Agreement and the Pooling and Servicing Agreement are within
the corporate power of the Depositor and neither the execution and delivery
by the Depositor of this Agreement, the Underwriting Agreement and the
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Pooling and Servicing Agreement nor the consummation by the Depositor of
the transactions therein contemplated, nor the compliance by the Depositor
with the provisions thereof, will conflict with or result in a breach of,
or constitute a default under, the charter or the by-laws of the Depositor
or any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Depositor or its properties, or
any of the provisions of any indenture, mortgage, contract or other
instrument to which the Depositor is a party or by which it is bound, or
will result in the creation or imposition of a lien, charge or encumbrance
upon any of its property pursuant to the terms of any such indenture,
mortgage, contract or other instrument, except such as have been obtained
under the 1933 Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Offered Securities by the Underwriters.
(h) The Underwriting Agreement has been, and at the Closing Date the
Pooling and Servicing Agreement will have been, duly authorized, executed
and delivered by the Depositor.
(i) At the Closing Date, each of the Underwriting Agreement and the Pooling
and Servicing Agreement will constitute a legal, valid and binding
obligation of the Depositor, enforceable against the Depositor, in
accordance with its terms, subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium and other
laws affecting the rights of creditors generally, and to general principles
of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at
law).
(j) No filing or registration with, notice to, or consent, approval,
non-disapproval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by the
Depositor of the transactions contemplated by the Underwriting Agreement or
the Pooling and Servicing Agreement, except such as have been obtained and
except such as may be required under the 1933 Act, the rules and
regulations thereunder, or state securities or "Blue Sky" laws, in
connection with the purchase
17
and distribution of the Offered Securities by the Underwriters.
(k) The Depositor owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease, own or license, as the case may be, and
to operate, its properties and to carry on its business as presently
conducted and has received no notice of proceedings relating to the
revocation of any such license, permit, consent, order or approval, which
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the conduct of the
business, results of operations, net worth or condition (financial or
otherwise) of the Depositor.
(l) Other than as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending to which the Depositor is a party
or of which any property of the Depositor is the subject which, if
determined adversely to the Depositor would individually or in the
aggregate have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, or business or business prospects of the
Depositor and, to the best of the Depositor's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(m) Each of the Offered Securities will, when issued, be a "mortgage
related security" as such term is defined in Section 3(a)(41) of the 1934
Act.
(n) At the Closing Date each of the Mortgage Loans which is a subject of
the Pooling and Servicing Agreement and all such Mortgage Loans in the
aggregate will meet the criteria for selection described in the Prospectus,
and at the Closing Date the representations and warranties made by the
Depositor in such Pooling and Servicing Agreement will be true and correct
as of such date.
(o) At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will have good and marketable title to the
Mortgage Loans being transferred to the Trustee pursuant to the Pooling and
Servicing Agreement, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens"), and will not have assigned
18
to any person any of its right, title or interest in such Mortgage Loans or
in such Pooling and Servicing Agreement or the Offered Securities being
issued pursuant thereto, the Depositor will have the power and authority to
transfer such Mortgage Loans to the Trustee and to transfer the Offered
Securities to each of the Underwriters, and, upon execution and delivery to
the Trustee of the Pooling and Servicing Agreement and delivery to each of
the Underwriters of the Offered Securities, the Trustee will have good and
marketable title to the Mortgage Loans and each of the Underwriters will
have good and marketable title to the Offered Securities, in each case free
and clear of any Liens.
(p) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund (as
defined in the Pooling and Servicing Agreement) is not required to be
registered under the Investment Company Act of 1940, as amended.
(q) Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of the Underwriting Agreement, this
Agreement, the Pooling and Servicing Agreement and the Offered Securities
have been or will be paid at or prior to the Closing Date.
7. Indemnification and Contribution.
(a) The Depositor agrees to indemnify and hold harmless each Underwriter
(including Prudential Securities Incorporated acting in its capacity as
Representative and as one of the Underwriters), and each person, if any,
who controls any Underwriter within the meaning of the 1933 Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each such
19
controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Depositor will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with (1) written
information furnished to the Depositor by any Underwriter through the
Representative specifically for use therein or (2) information regarding
the Mortgage Loans except to the extent that the Depositor has been
indemnified by the Servicer. This indemnity agreement will be in addition
to any liability which the Depositor may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Depositor, each
of the Depositor's directors, each of the Depositor's officers who signed
the Registration Statement and each person, if any, who controls the
Depositor, within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities to which the Depositor, or any such director,
officer or controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or any other prospectus relating to the
Offered Securities, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statements or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Depositor by any Underwriter through the Representative specifically for
use therein; and each Underwriter will reimburse any legal or other
expenses reasonably incurred by the Depositor or any such director, officer
or controlling person in connection with investigating or defending any
such
20
loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which such Underwriter may otherwise have. The
Depositor acknowledges that the statements set forth under the caption
"Plan of Distribution" in the Prospectus Supplement constitute the only
information furnished to the Depositor by or on behalf of any Underwriter
for use in the Registration Statement, any Preliminary Prospectus or the
Prospectus, and each of the several Underwriters represents and warrants
that such statements are correct as to it.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party of the commencement thereof,
but the omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability which the indemnifying party may have
to any indemnified party hereunder except to the extent such indemnifying
party has been prejudiced thereby. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof
with counsel satisfactory to such indemnified party. After notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Representative shall have the right to employ separate
counsel to represent the Representative, those other Underwriters and their
respective controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the
Underwriters against the Depositor under this Section 7 if, in the
reasonable judgment of the Representative, it is advisable for the
Representative and those Underwriters and controlling persons to be
represented by separate counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Depositor (it being
21
understood, however, that the Depositor shall not, in connection with any
one such claim or separate but substantially similar or related claim in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the Representative and those
Underwriters and controlling persons).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding parts of this Section 7 is for any reason held to be unavailable
to or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof); provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by the Depositor on the one hand,
and the Underwriters on the other, from the offering of the Offered
Securities (taking into account the portion of the proceeds of the offering
realized by each), the Depositor's and the Underwriters' relative knowledge
and access to information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Depositor and the Underwriters agree that it would not
be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one
entity for such purpose). No Underwriter or person controlling such
Underwriter shall be obligated to make contribution hereunder which in the
aggregate exceeds the total public offering price of the Offered Securities
purchased by such Underwriter under the Underwriting Agreement, less the
aggregate amount of any damages which such Underwriter and its controlling
persons have otherwise been required to pay in respect of
22
the same or any substantially similar claim. The Underwriters' obligation
to contribute hereunder are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 7,
each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as
such Underwriter, and each director of the Depositor, each officer of the
Depositor who signed the Registration Statement, and each person, if any,
who controls the Depositor within the meaning of Section 15 of the 1933
Act, shall have the same rights to contribution as the Depositor.
(e) The parties hereto agree that the first sentence of Section 5 of the
Indemnification Agreement (the "Indemnification Agreement") dated as of the
Closing Date among the Certificate Insurer, the Servicer, the Depositor and
the Underwriter shall not be construed as limiting the Depositor's right to
enforce its rights under Section 7 of this Agreement. The parties further
agree that, as between the parties hereto, to the extent that the
provisions of Section 4, 5 and 6 of the Indemnification Agreement conflict
with Section 7 hereof, the provisions of Section 7 hereof shall govern.
(f) Each Underwriter agrees to provide the Depositor no later the date on
which the Prospectus Supplement is required to be filed pursuant to Rule
424 with a copy of its Derived Information (defined below) for filing with
the Commission on Form 8-K.
(g) Each Underwriter severally agrees, assuming all Depositor-Provided
Information (defined below) is accurate and complete in all material
respects, to indemnify and hold harmless the Depositor, its respective
officers and directors and each person who controls the Depositor within
the meaning of the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Derived Information provided by such
Underwriter, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the
23
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any such
loss, claim, damage, liability or action as such expenses are incurred. The
obligations of an Underwriter under this Section 8(E) shall be in addition
to any liability which such Underwriter may otherwise have.
The procedures set forth in Section 8(C) shall be equally applicable to
this Section 8(E).
For purposes of this Section 8, the term "Derived Information" means such
portion, if any, of the information delivered to the Depositor pursuant to
Section 8(D) for filing with the Commission on Form 8-K as: (i) is not contained
in the Prospectus without taking into account information incorporated therein
by reference; and (ii) does not constitute Depositor-Provided Information.
"Depositor-Provided Information" means any computer tape furnished to the
Underwriter by the Depositor concerning the assets comprising the Trust.
8. Survival of Certain Representations and Obligations. The respective
representations, warranties, agreements, covenants, indemnities and other
statements of the Depositor, its officers and the several Underwriters set forth
in, or made pursuant to, the Underwriting Agreement shall remain in full force
and effect, regardless of any investigation, or statement as to the result
thereof, made by or on behalf of any Underwriter, the Depositor, or any of the
officers or directors or any controlling person of any of the foregoing, and
shall survive the delivery of and payment for the Offered Securities.
9. Termination.
(a) The Underwriting Agreement may be terminated by the Depositor by notice
to the Representative in the event that a stop order suspending the
effectiveness of the Registration Statement shall have been issued or
proceedings for that purpose shall have been instituted or threatened.
(b) The Underwriting Agreement may be terminated by the Representative by
notice to the Depositor in the event that the Depositor shall have failed,
refused or been unable to perform all obligations and satisfy all
conditions to be performed or
24
satisfied hereunder by the Depositor at or prior to the Closing Date.
(c) Termination of the Underwriting Agreement pursuant to this Section 9
shall be without liability of any party to any other party other than as
provided in Sections 7 and 11 hereof.
10. Default of Underwriters. If any Underwriter or Underwriters defaults or
default in their obligation to purchase Offered Securities which it or they have
agreed to purchase under the Underwriting Agreement and the aggregate principal
amount of the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate principal amount, notional amount or stated amount, as applicable, of
the Offered Securities to be sold under the Underwriting Agreement, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments under the Underwriting Agreement to purchase the
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so defaults or default
and the aggregate principal amount of the Offered Securities with respect to
which such default or defaults occurs or occur is more than ten percent of the
aggregate principal amount, notional amount or stated amount, as applicable, of
Offered Securities to be sold under the Underwriting agreement, as the case may
be, and arrangements satisfactory to the Representative and the Depositor for
the purchase of such Offered Securities by other persons (who may include one or
more of the non-defaulting Underwriters including the Representative) are not
made within 36 hours after any such default, the Underwriting Agreement will
terminate without liability on the part of any non-defaulting Underwriters or
the Depositor except for the expenses to be paid or reimbursed by the Depositor
pursuant to Section 11 hereof. As used in the Underwriting Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10. Nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. Expenses. The Depositor agrees with the several Underwriters that:
(a) whether or not the transactions contemplated in the Underwriting
Agreement are consummated or the Underwriting Agreement is terminated, the
Depositor will pay all fees and expenses incident to the performance of its
obligations under the Underwriting Agreement, including but not limited to,
(i) the Commission's registration fee, (ii) the expenses of printing and
distributing the
25
Underwriting Agreement and any related underwriting documents, the
Registration Statement, any Preliminary Prospectus, the Prospectus, any
amendments or supplements to the Registration Statement or the Prospectus,
and any Blue Sky memorandum or legal investment survey and any supplements
thereto, (iii) fees and expenses of rating agencies, accountants and
counsel for the Depositor, (iv) the expenses referred to in Section 5(e)
hereof, and (v) all miscellaneous expenses referred to in Item 30 of the
Registration Statement;
(b) all out-of-pocket expenses, including counsel fees, disbursements and
expenses, reasonably incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Offered Securities and
proposing to purchase and purchasing the Offered Securities under the
Underwriting Agreement will be borne and paid by the Depositor if the
Underwriting Agreement is terminated by the Depositor pursuant to Section
9(a) hereof or by the Representative on account of the failure, refusal or
inability on the part of the Depositor to perform all obligations and
satisfy all conditions on the part of the Depositor to be performed or
satisfied hereunder; and
(c) the Depositor will pay the cost of preparing the certificates for the
Offered Securities.
Except as otherwise provided in this Section 11, the Underwriters agree to
pay all of their expenses in connection with investigating, preparing to market
and marketing the Offered Securities and proposing to purchase and purchasing
the Offered Securities under the Underwriting Agreement, including the fees and
expenses of their counsel and any advertising expenses incurred by them in
making offers and sales of the Offered Securities.
12. Notices. All communications under the Underwriting Agreement shall be
in writing and, if sent to the Underwriters, shall be mailed, delivered or
telegraphed and confirmed to the Representative at the address and to the
attention of the person specified in the Underwriting Agreement, and, if sent to
the Depositor, shall be mailed, delivered or telegraphed and confirmed to
Prudential Securities Secured Financing Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Director-Mortgage Finance Group;
provided, however, that any notice to any Underwriter pursuant to the
Underwriting Agreement shall be mailed, delivered or telegraphed and confirmed
to such Underwriter at the address furnished by it.
26
13. Representative of Underwriters. Any Represen- tative identified in the
Underwriting Agreement will act for the Underwriters of the Offered Securities
and any action taken by the Representative under the Underwriting Agreement will
be binding upon all of such Underwriters.
14. Successors. The Underwriting Agreement shall inure to the benefit of
and shall be binding upon the several Underwriters and the Depositor and their
respective successors and legal representatives, and nothing expressed or
mentioned herein or in the Underwriting Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of the Underwriting Agreement, or any provisions herein
contained, the Underwriting Agreement and all conditions and provisions hereof
being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the
representations and warranties of the Depositor contained herein or in the
Underwriting Agreement shall also be for the benefit of any person or persons
who controls or control any Underwriter within the meaning of Section 15 of the
1933 Act, and (ii) the indemnities by the several Underwriters shall also be for
the benefit of the directors of the Depositor, the officers of the Depositor who
have signed the Registration Statement and any person or persons who control the
Depositor within the meaning of Section 15 of the 1933 Act. No purchaser of the
Offered Securities from any Underwriter shall be deemed a successor because of
such purchase. This Agreement and each Underwriting Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
15. Time of the Essence. Time shall be of the essence of each Underwriting
Agreement.
16. Governing Law. This Agreement and each Underwriting Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
27
Exhibit A
Opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
special counsel for the Depositor
(i) Each of the Documents constitutes the valid, legal and binding
agreement of the Depositor, and is enforceable against the Depositor in
accordance with its terms.
(ii) The Certificates, assuming the due execution by the Trustee and due
authentication by the Trustee and payment therefor pursuant to the Underwriting
Agreement, are validly issued and outstanding and are entitled to the benefits
of the Pooling and Servicing Agreement.
(iii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required under
federal laws or the laws of the State of New York for the execution, delivery
and performance of the Documents or the offer, issuance, sale or delivery of the
Certificates or the consummation of any other transaction contemplated thereby
by the Depositor, except such which have been obtained.
(iv) The Registration Statement and the Prospectus (other than the
financial and statistical data included therein, as to which we are not called
upon to express any opinion), at the time the Registration Statement became
effective, as of the date of execution of the Underwriting Agreement and as of
the date hereof comply as to form in all material respects with the requirements
of the Securities Act of 1933, as amended, and the rules and regulations
thereunder, and the Exchange Act and the rules and regulations thereunder, and
we do not know of any amendment to the Registration Statement required to be
filed, or of any contracts, indentures or other documents of a character
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus, which has not been
filed or described as required.
(v) Neither the qualification of the Pooling and Servicing Agreement under
the Trust Indenture Act of 1939, as amended, nor the registration of the Trust
Fund created by the Pooling and Servicing Agreement under the Investment Company
Act of 1940 is required.
(vi) The statements in the Prospectus Supplement set forth under the
caption "DESCRIPTION OF THE CERTIFICATES," to the extent such statements purport
to summarize certain provisions of the Certificates or of the Pooling and
Servicing
Agreement or of the Unaffiliated Seller's Agreement, are fair and accurate in
all material respects.
A-2
Exhibit B
Opinions of Counsel to
the Servicer
(i) The Servicer has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of South Carolina and
is qualified to transact business in the State of South Carolina.
(ii) The Servicer has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and observe the
conditions of, the Pooling and Servicing Agreement.
(iii) The Pooling and Servicing Agreement has been duly and validly
authorized, executed and delivered by the Servicer, all requisite corporate
action having been taken with respect thereto, and constitutes the valid, legal
and binding agreement of the Servicer, and is enforceable against the Servicer
in accordance with its respective terms.
(iv) The execution, delivery or performance by the Servicer of the Pooling
and Servicing Agreement does not (A) conflict or will not conflict with or
result or will result in a breach of, or constitute or will constitute a default
under or violate or will violate, (i) any term or provision of the Articles of
Incorporation or By-laws of the Servicer; (ii) any term or provision of any
material agreement, contract, instrument or indenture, to which the Servicer or
any of its subsidiaries is a party or is bound; or (iii) any order, judgment,
writ, injunction or decree of any court or governmental agency or body or other
tribunal having jurisdiction over the Servicer or any of its properties; or (B)
result in, or will result in the creation or imposition of any lien, charge or
encumbrance upon the Trust Fund or upon the Certificates, except as otherwise
contemplated by the Pooling and Servicing Agreement.
(v) No consent, approval, authorization or order of, registration or
qualification of or with or notice to, any courts, governmental agency or body
or other tribunal is required under the laws of New York or South Carolina, for
the execution, delivery and performance of the Pooling and Servicing Agreement
or the consummation of any other transaction contemplated thereby by the
Servicer, except such which have been obtained.
(vi) There are no legal or governmental suits, proceedings or
investigations pending or, to such counsel's knowledge, threatened against the
Servicer before any court, governmental agency or body or other tribunal (A)
which, if determined adversely to the Servicer, would individually or in the
aggregate have a material adverse effect on (i) the consolidated financial
position, business prospects, stockholders's equity or results of operations of
the Servicer; or (ii) the Servicer's ability to perform its obligations under,
or the validity or enforceability of the Pooling and Servicing Agreement; or (B)
which have not otherwise been disclosed in the Registration Statement and to the
best of such counsel's knowledge, no such proceedings or investigations are
threatened or contemplated by governmental authorities or threatened by others.
B-2
Exhibit C
Opinions of Counsel to
the Trustee
(i) The Trustee is a national banking association duly organized, validly
existing and in good standing under the laws of the United States and has the
power and authority to enter into and to take all actions required of it under
the Pooling and Servicing Agreement;
(ii) The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by the Trustee and the Pooling and Servicing Agreement constitutes
the legal, valid and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, except as enforceability thereof may be
limited by (A) bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, as such laws would
apply in the event of a bankruptcy, insolvency or reorganization or similar
occurrence affecting the Trustee, and (B) general principles of equity
regardless of whether such enforcement is sought in a proceeding at law or in
equity;
(iii) No consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part of the
Trustee in connection with its execution and delivery of the Pooling and
Servicing Agreement or the performance of its obligations thereunder;
(iv) The Certificates have been duly executed, authenticated and delivered
by the Trustee; and
(v) The execution and delivery of, and performance by the Trustee of its
obligations under, the Pooling and Servicing Agreement do not conflict with or
result in a violation of any statute or regulation applicable to the Trustee, or
the charter or bylaws of the Trustee, or to the best knowledge of such counsel,
any governmental authority having jurisdiction over the Trustee or the terms of
any indenture or other agreement or instrument to which the Trustee is a party
or by which it is bound.
Exhibit D
Opinions of Counsel
to the Certificate Insurer
(i) The Certificate Insurer is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State of New York. The
Certificate Insurer is validly licensed and authorized to issue the Policy and
perform its obligations under the Policy in accordance with the terms thereof,
under the laws of the State of New York.
(ii) The execution and delivery by the Certificate Insurer of the Policy,
the Insurance and Indemnity Agreement and the Indemnification Agreement are
within the corporate power of the Certificate Insurer and has been authorized by
all necessary corporate action on the part of the Certificate Insurer; the
Policy has been duly executed and is the valid and binding obligation of the
Certificate Insurer enforceable in accordance with its terms except that the
enforcement of the Policy may be limited by laws relating to bankruptcy,
insolvency, reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and by general principles of equity.
(iii) The Certificate Insurer is authorized to deliver the Indemnification
Agreement and the Insurance and Indemnity Agreement, and each Agreement has been
duly executed and is the valid and binding obligation of the Certificate Insurer
enforceable in accordance with its terms except that the enforcement thereof may
be limited by laws relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting creditors' rights
generally and by general principles of equity and by public policy
considerations relating to indemnification for securities law violations.
(iv) No consent, approval, authorization or order of any state or federal
court or governmental agency or body is required on the part of the Certificate
Insurer, the lack of which would adversely affect the validity or enforceability
of the Policy; to the extent required by applicable legal requirements that
would adversely affect validity or enforceability of the Policy, the form of the
Policy has been filed with, and approved by, all governmental authorities having
jurisdiction over the Certificate Insurer in connection with such Policy.
(v) To the extent the Policy constitutes a security within the meaning of
Section 2(1) of the 1933 Act, it is a security that is exempt from the
registration requirements of the Act.
(vi) The information set forth under the captions "THE INSURER" in the
Prospectus insofar as such statements constitute a description of the Policy,
accurately summarizes the Policy.
D-2
